AAM-26-13-00004-EP Standards for Petroleum Products

6/26/13 N.Y. St. Reg. AAM-26-13-00004-EP

NEW YORK STATE REGISTER

VOLUME XXXV, ISSUE 26

June 26, 2013

RULE MAKING ACTIVITIES

DEPARTMENT OF AGRICULTURE AND MARKETS

EMERGENCY/PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. AAM-26-13-00004-EP

Filing No. 617

Filing Date. Jun. 10, 2013

Effective Date. Jun. 10, 2013

Standards for Petroleum Products

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Proposed Action:

Amendment of section 224.3(a) of Title 1 NYCRR.

Statutory authority:

Agriculture and Markets Law, sections 16, 18 and 179(3)(b)

Finding of necessity for emergency rule:

Preservation of public health, public safety and general welfare.

Specific reasons underlying the finding of necessity:

The American Society for Testing Materials (ASTM) provides, in a document numbered D 4814, specifications and test procedures for petroleum products. Currently, the 2004 version of such document is incorporated by reference in 1 NYCRR section 224.3(a). In 2012, however, ASTM published a new version of D 4814 which contains new and less stringent requirements for petroleum products. The 2012 version of D 4814 is in use in surrounding states and New York must incorporate by reference such document, on an emergency basis, to ensure that the State does not have different standards for petroleum products than surrounding states which could unduly burden refiners and sellers of petroleum products and jeopardize provision of petroleum products to the State’s residents.

Subject:

Standards for petroleum products.

Purpose:

To ensure that specifications and test procedures for petroleum products meet current requirements issued by ASTM.

Text of emergency/proposed rule:

Subdivision (a) of section 224.3 of 1 NYCRR is amended to read as follows:

(a) Automotive gasoline. All automotive gasoline shall meet the requirements in the Annual Book of ASTM Standards, specification number [D 4814-04a] D 4814-12, except as noted below.

(1) Vapor pressure. Vapor pressure standards set forth in 6 NYCRR Subpart 225-3, or exceptions granted thereto by the Commissioner of Environmental Conservation, shall supersede those in this section.

(2) Gasoline-alcohol blends.

(i) The total alcohol content of any gasoline alcohol blend shall not exceed 10 percent by volume.

(ii) When methanol is blended with gasoline in quantities greater than three-tenths (0.3) percent by volume, the finished blend shall contain at least an equal amount of butanol or higher molecular weight alcohol, or other approved co-solvent. The maximum methanol content of any gasoline shall not exceed five percent by volume.

(3) Motor octane number. All unleaded gasoline with minimum (R + M)/2 octane ratings of 87 or higher shall have minimum motor octane number of 82. Unleaded gasolines with minimum (R + M)/2 octane ratings less than 87 shall have a minimum motor octane number of 81.5.

(4) Testing for octane rating. To determine the automotive fuel rating (octane rating) for gasoline in this Part, add the research octane number from test method ASTM D2699-92 and the motor octane number from test method ASTM D2700-92 and divide by two as explained in ATSM Standards, specification number [D 4814-04a] D 4814-12. Variations in test results for octane ratings within the ASTM reproducibility limits shall be recognized in the enforcement of this section. No violation shall be issued for failure to meet a certified or posted octane rating unless the laboratory test results are:

(i) more than seven-tenths (0.7) octane less than the certified or posted octane for octane ratings less than 89; or

(ii) more than six-tenths (0.6) octane less than the certified or posted octane rating for octane ratings of 89 or greater.

(5) Leaded gasoline. All automotive gasoline designated as “leaded” shall contain a minimum of 0.05 gram per gallon and a maximum of 0.1 gram per gallon of lead, or a minimum of 0.005 gram per gallon of phosphorous.

This notice is intended:

to serve as both a notice of emergency adoption and a notice of proposed rule making. The emergency rule will expire September 7, 2013.

Text of rule and any required statements and analyses may be obtained from:

Michael Sikula, NYS Dept. of Agriculture and Markets, 10B Airline Drive, Albany, New York 12235, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

This rule was not under consideration at the time this agency submitted its Regulatory Agenda for publication in the Register.

Regulatory Impact Statement

1. Statutory authority:

Agriculture and Markets Law (“A&ML”) sections 16, 18, 179(3)(b).

2.Legislative objectives:

The legislature has authorized the Commissioner of Agriculture and Markets (“Commissioner”) to promulgate rules that, generally, implement the provisions of the A&ML Furthermore, the legislature has specifically authorized the Commissioner to promulgate rules that relate to petroleum product quality, specifications, and sampling and testing methods and that are consistent with the standards established by the American Society for Testing and Materials (“ASTM”). The proposed rule will incorporate by reference in 1 NYCRR section 224.3(a) a document published by ASTM, entitled D 4814-12, in place of D 4814-04a, presently incorporated by reference. D 4814-12 contains more current and less burdensome requirements relating to distillation temperatures for gasoline/ethanol blends and to vapor lock protection classes for gasoline.

The proposed rule, if adopted, would advance the legislative objective referred to above.

3.Needs and benefits:

The proposed rule is needed to advance the legislative intent to ensure that New York’s regulations governing petroleum product quality, specifications, and sampling and testing methods are consistent with the latest, most reliable science and technology, as determined by ASTM. The proposed rule is also needed to ensure that an ample supply of gasoline is available to the residents of the State. Presently, ASTM D4814-04a is incorporated by reference in 1 NYCRR section 224.3(a) and provides for more stringent requirements than does D4814-12, which would replace D4814-04a upon adoption of the proposed rule. Nearly all of the states surrounding New York have adopted or enforce the provisions of D4814-12 and New York is, therefore, “out-of-step” with such states. The effect of this situation is that it is more costly for manufacturers and blenders of gasoline and gasoline/ethanol blends (“distributors”) to directly provide such petroleum products to New York as compared to providing such petroleum products to surrounding states, and that it is impractical for such petroleum products that have been shipped to surrounding states to be “re-shipped” to New York in the event of a disruption in supply in New York; the proposed rule is needed to ensure that this situation is effectively remedied.

Finally, the proposed rule is needed to relieve a regulatory burden upon distributors. Presently, gasoline and gasoline/ethanol blends (“such petroleum products”) must meet relatively high distillation temperature standards and vapor lock protection requirements. While requirements of these types are necessary to ensure that such petroleum products are safe, perform adequately, and do not damage the motor vehicles in which they are used, the requirements that are presently in effect are unnecessarily expensive to comply with and do not serve to promote the aforementioned interests any more effectively than requirements that are less burdensome. As such, the proposed rule is needed to lift an unnecessary regulatory requirement upon distributors.

The residents of the State will benefit if the proposed rule is adopted. The State’s residents collectively require an adequate supply of such petroleum products that are “reasonably” priced; the proposed rule, if adopted, will aid in accomplishing that objective.

4.Costs:

a.Costs to regulated parties: None.

b.Costs to the agency, state and local governments: None.

c.The proposed rule will require distributors to deal in such petroleum products that are in compliance with less stringent requirements than are presently imposed; as such, those distributors should experience a decrease in the cost of formulating and refining such petroleum products.

5.Local government mandates:

None.

6.Paperwork:

None.

7.Duplication:

The proposed rule does not duplicate any extant federal or state requirement.

8.Alternatives:

None.

9.Federal standards:

None. The National Institute of Standards and Technology (“NIST”), a division of the United States Department of Commerce, publishes Handbook 130, Uniform Laws and Regulations in the Areas of Legal Metrology and Engine Fuel Quality (“Handbook 130”), and reference is made therein to the most recent version of D 4814. The provisions of Handbook 130 are not set forth in federal law or regulation, however, and are not pre-emptive upon the states. As such, no federal standards in this area exist.

10.Compliance schedule:

Distributors who legally deal in such petroleum products in New York are currently in compliance with the proposed rule because the proposed rule lessens the currently-applicable regulatory requirement. Upon adoption of the proposed rule, such manufacturers and blenders may deal in such petroleum products that meet lesser requirements but will not be required to do so.

Regulatory Flexibility Analysis

1. Effect of rule:

There are approximately 6,000 retailers of gasoline and gasoline/ethanol blends (“such petroleum products”) located in New York, almost all of which are small businesses. There are also approximately 200 distributors of such petroleum products located in the State; these entities transport such petroleum products in trucks from terminals to retail outlets and almost all of them are small businesses. Because the proposed rule will affect only those entities that refine or manufacture such petroleum products from crude oil and retailers and distributors of such petroleum products do not typically do so, the proposed rule will have little if no effect upon small businesses.

2.Compliance requirements:

Because retailers and distributors will not be affected by the proposed rule, they will not have to undertake any affirmative acts to comply. Manufacturers and importers of such petroleum products will be affected by the proposed rule but will be required to comply with less stringent requirements than are presently imposed; furthermore, such entities consist of few if any small businesses.

3.Professional services:

None.

4.Compliance costs:

The proposed rule will incorporate less stringent requirements relating to distillation temperatures for gasoline/ethanol blends and to vapor lock protection classes for gasoline than are presently imposed. As such, the proposed rule will lessen compliance costs compared to those that are currently imposed. Furthermore, most if not all of such petroleum products are sold and distributed in interstate commerce and all states surrounding New York currently require manufacturers and importers to comply with the less stringent requirements referred to above (furthermore, and as also mentioned above, manufacturers and importers of such petroleum products are not, by and large, small businesses).

5.Economic and technological feasibility:

Persons affected by the proposed rule will use the same equipment for testing such petroleum products to determine whether they meet the new standards required by the proposed rule as they presently use to determine compliance with the standards that are currently in effect. As such, compliance with the proposed rule is economically and technically feasible.

6.Minimizing adverse impact:

The proposed rule will not have any adverse impact upon small businesses.

7.Small business and local government participation:

The proposed rule will have no effect upon local governments. Prior to preparing the proposed rule, the New York State Petroleum Council, a group that represents the interests of all participants in the petroleum business, was consulted and had an opportunity to comment.

Rural Area Flexibility Analysis

The proposed rule will not impose any adverse impact upon rural areas nor will it require entities in rural areas to prepare reports, maintain records, or engage in other compliance actions. The proposed rule will incorporate by reference a document prepared by the American Society for Testing Materials (ASTM), entitled D 4814-12, in place of D 4814-04a, presently incorporated by reference. D 4814-12 contains less stringent requirements for the distillation temperature of gasoline/ethanol blends, and also provides lower vapor lock protection class requirements for gasoline. Because the proposed rule lessens a burden upon gasoline manufacturers and blenders, it will have no adverse impact upon regulated parties located in rural areas.

Job Impact Statement

The proposed rule will have no impact upon jobs and employment opportunities. The proposed rule will incorporate by reference a document prepared by the American Society for Testing Materials (ASTM), entitled D 4814-12, in place of D 4814-04a, presently incorporated by reference. D 4814-12 contains less stringent requirements for the distillation temperature of gasoline/ethanol blends, and also provides lower vapor lock protection class requirements for gasoline. Because the proposed rule lessens the burden upon gasoline manufacturers and blenders, it will have no impact upon jobs and employment opportunities.